Elena Kagan with President Barack Obama and Vice President Biden after being nominated to the Supreme Court.
Elena Kagan with President Barack Obama and Vice President Biden after being nominated to the Supreme Court.

On Tuesday the Supreme Court decided in Janus v. AFSCME, 5 to 4, that states and public-sector unions “may no longer extract agency fees from nonconsenting employees” as it violates the First Amendment which Associate Justice Elena Kagan says “weaponizes” our first freedoms.

Before I address that, I want to give a summary of the case and the ruling.

At the heart of the complaint is that government employees, like Mark Janus a state employee in Illinois, have to contribute to unions involuntarily. Those unions endorse candidates and lobby for positions that some employees disagree with so they choose not to become members. Some states, like Illinois, require “agency fees” to be paid to unions who collectively bargain for all employees, union and non-union alike, in a bargaining unit.

I wrote at The National Pulse about this decision that “(m)oney is fungible. When the “agency fees” collected covers the cost of collective bargaining, money initially budgeted for that can be spent elsewhere.”

That is true for agency fees, and that is true for taxpayer money going to organizations like Planned Parenthood. No, the funds may not directly pay for their abortion services, but it certainly allows them to spend private money in support of that activity.

Associate Justice Samuel Alito, who wrote the majority opinion overriding previous Supreme Court precedent, concluded, “The First Amendment is violated when money is taken from non-consenting employees for a public-sector union; employees must choose to support the union before anything is taken from them.”


Associate Justice Elana Kagan, who wrote the dissenting opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Ruth Bader Ginsburg, disagreed and she made a remarkable statement.

She wrote:

The majority overthrows a decision entrenched in this Nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

It “weaponizes” the First Amendment?

The First Amendment is not a weapon per se, but a shield. When economic and regulatory policy are weaponized to infringe on our freedom of speech, freedom of expression, freedom of religion, and freedom of conscience it protects us. Economic and regulatory policies, whether at the state or federal level, do not trump our inalienable rights.

Regulations like California’s Reproductive FACT Act, the HHS contraceptives mandate, sexual orientation and gender identity laws are weaponized to diminish our rights for the benefit of others whether it is the abortion industry, public-sector unions, or LGBT activists.

If citing the First Amendment is “weaponizing” it to defend freedom, so be it. I hope we see more of it then.

Read the Janus v. AFSCME decision below:

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